CAAF decided United States v. Mott, No. 12-0604/NA, 72 M.J. 319 (CAAFlog case page) (link to slip op.), on July 8, 2013. The case presented two significant but distinct issues. The first asked CAAF to determine the appropriate standard for an insanity defense under Article 50a, and CAAF finds that an objective standard of wrongfulness is appropriate under the Code, affirming the trial judge’s instruction to the members and the decision of the NMCCA. The second issue addresses the admission of Appellant’s confession to NCIS, and CAAF finds that the trial military judge abused his discretion when he admitted the confession because he failed to conduct a proper analysis, and that this error was not harmless. CAAF sets aside the findings and authorizes a rehearing in this case where Appellant has already been twice-convicted of attempted premeditated murder.

Chief Judge Baker writes for a unanimous court.

This case arose out of a stabbing that occurred aboard USS CAPE ST GEORGE in 2007. Appellant, who was suffering from paranoid delusions and was later diagnosed with schizophrenia, believed that the victim (a fellow sailor he had never seen before) participated in a gang rape of Appellant some four years earlier. Appellant was tried and convicted in 2008, contrary to his pleas, by a military judge sitting as a general court-martial, of attempted premeditated murder. The approved sentence was confinement for 12 years, total forfeitures, reduction to E-1, and a dishonorable discharge. But the NMCCA set aside the findings in 2009 due to a Government discovery violation (Mott I).

Appellant was retried in 2010, this time before a general court-martial composed of officer members. He was again convicted, contrary to his pleas, of attempted premeditated murder, and was sentenced to confinement for nine years, reduction to E-1, and a dishonorable discharge. The NMCCA affirmed the findings and sentence in April 2012 (Mott II)

During the second trial, Appellant unsuccessfully presented the affirmative defense of lack of mental responsibility. In response to a question from a member regarding the legal definition of wrongfulness, the military judge instructed that:

When the law speaks of wrongfulness[,] the law does not mean to permit the individual to be his own judge of what is right or wrong. What is right or wrong is judged by societal standards. The standard focuses on the accused’s ability to appreciate that his conduct would be contrary to public or societal standards.

Slip op. at 7. But at trial, before the CCA, and at CAAF, Appellant argued that the definition should “incorporate[] the subjective beliefs of the accused in determining wrongfulness.” Slip op. at 8. Appellant also unsuccessfully moved to suppress his confession at trial.

Chief Judge Baker’s opinion begins by noting that the insanity defense in Article 50a is “substantively identical” to the federal insanity defense created by the Insanity Defense Reform Act of 1984 (IDRA). The IDRA broadened the common law test developed in the English law M’Naghten’s Case, 8 Eng. Rep. 718 (1843), and requires that a defendant suffering from a severe mental disease or defect be unable to appreciate (rather than merely know) the nature and quality or the wrongfulness of his acts. But “wrongfulness” is not defined in the UCMJ, and Appellant argued that it should be “determined by an accused’s sense of right and wrong.” Slip op. at 13. CAAF rejects this argument, and Chief Judge Baker notes that M’Naghten’s Case and the decisions of many of our federal courts have settled on an objective test that refers to societal or public standards of morality:

Society formally expresses its determinations of “right and wrong” and “public morality” through law. Thus, wrongfulness is based on the law, even if it does not require the accused to have actual knowledge of the law. While “appreciate” is subjective, “wrongfulness” must be objective. Thus, “appreciating wrongfulness” is the accused’s ability to understand and grasp that his conduct violates society’s essential rules, and is supported by an accused’s understanding that his conduct violated the law, and is contradicted by evidence that — if the facts of the accused’s delusions were true — then his conduct would not violate the law.

Slip op. at 15-16 (citations omitted). Thus, CAAF concludes that the panel was properly instructed by the trial judge.

But CAAF finds significant fault with a different action of the trial judge: “Without deciding whether Appellant knowingly and intelligently waived his right to counsel, we hold that the military judge abused his discretion by failing to analyze as a matter of law whether Appellant could and did knowingly and intelligently waive his rights.” Slip op. at 17.

The admissibility of Appellant’s confession was litigated during a pretrial hearing where the Government called one of the NCIS agents who took the statement, and the Defense called a psychiatrist who gave expert testimony “that Appellant was not competent to waive his right to remain silent.” Slip op. at 23. Considering the result of this hearing, Chief Judge Baker notes that:

In his ruling, the military judge did not address [the psychiatrist’s] testimony, but apparently rejected it in finding (as a finding of fact, not law) that Appellant “knowingly, intelligently, and voluntarily waived his rights.” The military judge found that the “accused’s memory and thought processes were functioning” during the interrogation and that “[t]he accused gave, although bizzare [sic] in content, logical answers to the questions that were asked.”

Slip op. at 25. “[T]here are two branches to the waiver analysis. First, was the waiver voluntary? And, second, was the waiver knowing and intelligent?” Slip op. at 28. But, “[t]he military judge’s analysis does not address the issue of knowing and intelligent waiver, but rather focuses solely on the question of voluntariness. This is despite the fact that Appellant’s suppression motion was based on knowing and intelligent waiver, and not voluntariness.” Slip op. at 30 (emphasis added). Chief Judge Baker focuses on the trial judge’s flawed analysis:

the findings do not address the uncontested expert testimony. In fairness, the Edwards test as applied in the context of mental illness has not been articulated in military jurisprudence. The military judge did find a number of facts that would support a legal finding of knowing and intelligent waiver; however, these facts were not discussed or explicitly analyzed and applied to a finding of law.

As a result, the military judge abused his discretion in his analysis. The military judge did not apply the Edwards framework, which requires a separate analysis of voluntary waiver and knowing and intelligent waiver. . . . The military judge also erred when he addressed whether Appellant’s waiver was knowing and intelligent solely as a conclusory finding of fact, rather than as a conclusion of law.

Slip op. at 30-31. He concludes with an implicit reminder that confessions (which are the least reliable form of proof known to the law) are presumed inadmissible, with the burden on the Government to demonstrate otherwise:

We find that the military judge abused his discretion by not separately analyzing whether Appellant’s waiver was knowing and intelligent. Therefore, we do not reach a conclusion as to whether the confession in this case could be admissible — only that it was not properly admitted in this case.

Slip op. at 33. Finally, under the circumstances of this case (where the prosecution made extensive use of the confession during argument), the constitutional error in admitting Appellant’s confession was not harmless beyond a reasonable doubt, requiring reversal of the conviction. CAAF authorizes a rehearing.

But that rehearing will be the third trial of Seaman Mott where:

The facts of this case are largely undisputed. On 6 March 2007, Seaman JG checked onto USS CAPE ST GEORGE (CG 71) for duty. Two days later, while Seaman JG was eating breakfast on the ship’s mess deck, the appellant attacked and stabbed Seaman JG with a pocketknife. The appellant was pulled away from the victim by other shipmates and emergency medical assistance was rendered which saved Seaman JG’s life.

United States v. Mott, No. 200900115, slip op. at 5 (N-M.Ct.Crim.App. Nov 24, 2009) (unpublished) (Mott I). With a literal boatload of witnesses and a confession, the Government has already snatched defeat out of the jaws of victory twice. We’ll see if the third time is the charm.

But he could also earn up to an additional eight days per month of credit for participating in work, rehabilitative, educational, and other programs. Assuming he did those things, he probably earned another 8-12 months of credit. That leaves him with less than a year to serve.

The math, coupled with the odds that the Government screws it up again, predicts a third contested trial.

Just so I understand… He was sentenced to 9 years, which ran from 2008 — I think that runs his sentence to 2017 as a worst case. I suppose there is the issue of good time… and on a 9 year sentence, I suppose that takes about a year and a half off… so 7.5 years, or 2015 + 6 months.
If you are defense counsel, do you try and plea it down an aggravated assault in which grievous bodily harm is intentionally inflicted, capping the penalty at 5 years and a DD, and MJ alone sentencing, with an eye towards getting your guy released?
Unless the offer is decent, given the time served, I guess I might think about trying the case again given the fact that the confession is probably out and the possibility is your guy walks is increased, with little upside to a plea unless the offer is decent?

“confessions (which are the least reliable form of proof known to the law)”
That’s a bold statement. Can we get some facts/numbers to back that up? I thought cross-race eyewitness ID was the least reliable proof known to the law?
Also, can I change my survey answer about the philosophical leanings of CAAFlog from “slightly defense oriented” to “defense oriented”?

The Court’s analysis on the confession issue confuses me a bit.
Understand that the military judge did not separately analyze whether the appellant’s waiver was knowing and intelligent. Slip. Op. at 33. But why wouldn’t CAAF then just apply the law to the facts in the first instance as part of the harmlessness analysis? CAAF does this kind of thing all the time when the military judge fails to make findings of fact and conclusions of law. See United States v. Collier, 67 MJ 347, 353.
Based on the language in CAAF’s opinion, it appears the record was sufficiently developed to apply the law: “The military judge did find a number of facts that would support a legal finding of knowing and intelligent waiver; however, these facts were not discussed or explicitly analyzed and applied to a finding of law.” Put another way, this confession was not erroneously admitted if CAAF could have applied the law to the facts de novo.

Going to have to disagree on the confession being the least reliable proof known to the law. Just because we require verification of a confession doesn’t mean it’s not reliable, I’d say it’s an added protection for the accused based on the strength of that evidence.

The views expressed on this blog are offered in the contributors' personal capacities. They do not speak for, and their views should not be imputed to, any other organization, agency, or entity. The views expressed in this blog are those of the individual authors and do not reflect the official policy or position of any military service, the Department of Defense, or the U.S. Government. Click here for important disclaimers.